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to be read unto them the profession which they made at their consecration. Athon. 55.
And by a constitution of Othobon : Although bishops know themselves bound as well by divine as ecclesiastical precepts to personal residence with the flock of God committed to them; yet because there are some who do not seem to attend hereunto, therefore we, pursuing the monition of Otho the legate, do earnestly exhort them in the Lord, and admonish them in virtue of their holy obedience, and under attestation of the divine judgments, that out of care to their flock, and for the solace of the churches espoused to them, they be duly present, especially on solemn days in Lent and in Advent; unless their absence on such days shall be required for just cause by their superiors.
Athon. 118. of deans.. 7. Can. 42. Every dean, master, or warden, or chief governor
of any cathedral or collegiate church, shall be resident in the same fourscore and ten days conjunctim or divisim in every year at the least, and then shall continue there in preaching the word of God, and keeping good hospitality; except he shall be otherwise let with weighty and urgent causes to be approved by the bishop of the diocese, or in any other lawful sort dispensed with.
* To be approved by the bishop] By the antient canon law, personal attendance on the bishop, or study in the university, was a just cause of non-residence; and as such, notwithstanding the non-residence, intitled them to all profits, except quotidians.
Gibs. 172. 3157 8. Can. 44. No prebendaries nor canons in cathedral or colof preben- legiate churches having one or more benefices with cure (and daries and not being residentiaries in the same cathedral or collegiate other clergymen, these dignitaries have another law peculiar to themselves, namely, the local statutes of their respective foundations, the validity of which local statutes this canon supposeth and affirmeth. And with respect to the new foundations in particular, the act of parliament of the 6 An. c. 21. enacteth, that their local statutes shall be in force, so far as they are not contrary to the constitution of the church of England, or the laws of the land. This canon is undoubtedly a part of the constitution of the church : So that if the canon interfereth in any respect with the said local statutes, the canon is to be preferred, and the local statutes to be in force only so far forth as they are modified and regulated by the canon. 9. There doth not appear to be any difference, either by the Of rectors
churches), shall, under colour of their said prebends, absent
6 .. .
and vicars. ecclesiastical or temporal laws of this kingdom, between the case of a rector and of a vicar concerning residence; except only that the vicar (was before 57 G. 3. c. 99. $ 34.] sworn to reside (with a proviso, unless he shall be otherwise dispensed withal by his diocesan), and the rector is not sworn. And the reason of this difference was this : In the council of Lateran held under Alexander the third, and in another Lateran council held under Innocent the third, there were very strict canons made against pluralities; by the first of these councils pluralities are restrained, and every person admitted ad ecclesiam, vel ecclesiasticum ministerium, is bound to re- [ 316 ] side there, and personally serve the cure; by the second of these councils, if any person, having one benefice with cure of souls, accepts of a second, his first is declared void ipso jure. These canons were received in England, and are still part of our ecclesiastical law.
At the first appearance of these canons, there was no doubt made but they obliged all rectors; for they, according to the language of the law, had churches in title, and had beneficium ecclesiasticum: and of such the canons spoke. But vicars did not then look upon themselves to be bound by these canons, for they, as the gloss upon the decretals speaks, had not ecclesiam quoad titulum: and the text of the law describes them not as having benefices, but as bound personis et ecclesiis deservire, that is, as assistant to the rector in his church.
Upon this notion a practice was founded, and prevailed in England, which eluded the canons made against pluralities. A man beneficed in one church could not accept another without avoiding the first; but a man possessed of a benefice could accept a vicarage under the rector in another church, for that was no benefice in law, and therefore not within the letter of the canon, which forbids any man holding two benefices.
The way then of taking a second living in fraud of the canon was this: A friend was presented, who took the institution, and had the church quoad titulum; as soon as he was possessed, he
constituted the person vicar for whose benefit he took the living, and by consent of the diocesan allotted the whole profit of the living for the vicar's portion, except a small matter reserved to himself.
This vicar went and resided upon his first living, for the canon reached him where he had the benefice ; but having no benefice where he had only a vicarage, he thought himself secure against the said canons requiring residence.
This piece of management gave occasion to several papal decrees, and to the following constitution of archbishop Langton; viz. No ordinary shall admit any one to a vicarage, who will not personally officiate there. Lind. 64.
And to another constitution of the same archbishop, by which it is injoined, that vicars who will be non-resident shall be deprived. Lind. 131.
But the abuse still continued, and therefore Otho, in his lega[ 317 7 tine constitutions, applied a stronger remedy, ordaining, that
none shall be admitted to a vicarage, but who renouncing all other benefices (if he hath any) with cure of souls, shall swear that he will make residence there, and shall constantly so reside; otherwise his institution shall be null, and the vicarage shall be given to another. Athon. 24.
And it is upon the authority of this constitution that the oath of residence is administered to vicars to this day. And this obligation of vicars to residence was further inforced by a constitution of Othobon, as followeth ; If any shall detain a vicarage contrary to the aforesaid constitution of Otho, he shall not appropriate to himself the profits thereof, but shall restore the same; one moiety whereof shall be applied to the use of that church, and the other moiety shall be distributed half to the poor of the parish and half to the archdeacon. And the archdeacon shall make diligent enquiry every year, and cause this constitution to be strictly observed. And if he shall find that any one detaineth a vicarage contrary to the premises, he shall forthwith notify to the ordinary that such vicarage is vacant, who shall do what to him belongeth in the premises ; and if the ordinary shall delay to institute another into such vicarage, he shall be suspended from collation, institution, or presentation to any benefices until he shall comply. And if any one shall strive to detain a vicarage contrary to the premises, and persist in his obstinacy for a month; he shall, besides the penalties aforesaid, be ipso facto deprived of his other benefices (if he have any); and shall be disabled for ever to hold such vicarage which he hath so vexatiously detained, and from obtaining any other benefice for three years. And if the archdeacon shall be remiss in the premises, he shall be deprived of the share of the aforesaid penalty assigned to him, and be suspend
ed from the entrance of the church, until he shall perform his duty. Athon. 95.
So that upon the whole, the doubt was not, whether rectors were obliged to residence; the only question was whether vicars were also obliged: and to inforce the residence of vicars in like manner as of rectors, the aforesaid constitutions were ordained. Sherl. ibid. page 20, 21, 22.
[By the 57 Geo. 3. c. 99. 34. No oath shall be required of or taken by any vicar in relation to residence on his vicarage. By ỹ 81. the parsonage that has a vicar endowed, or a perpetual curate, and without cure of souls, shall be deemed a benefice within this act. But the word “benefice" in the act means 6 benefice with cure," and comprehends therein all donatives, perpetual curacies, and parochial chapelries. $ 72.]
10. Can. 47. Every beneficed man licensed by the laws of Of curates. this realm, upon urgent occasions of other service, not to reside upon his benefice, shall cause his cure to be supplied by a curate that is a sufficient and licensed preacher, if the worth of the benefice will bear it. But whosoever hath two benefices, shall maintain a preacher licensed in the benefice where he doth not reside, except he preach himself at both of them usually.
And by the last article of archbishop Wake's directions (which 318 7 are inserted at large under the title Ordination), it is required, that the bishop shall take care, as much as possible, that whosoever is admitted to serve any cure, do reside in the parish where he is to serve; especially in livings that are able to support a resident cure: and where that cannot be done, that they do at least reside so near to the place, that they may conveniently perform all their duties both in the church and parish. ..
11. By the faculty of dispensation, a pluralist is required, in Of plurale that benefice from which he shall happen to be most absent, to ists. preach thirteen sermons every year; and to exercise hospitality for two months yearly, and for that time, according to the fruits and profits thereof, as much as in him lieth, to support and relieve the inhabitants of that parish, especially the poor and needy.
12. By the 1 W. c. 26. If any person presented or nomi- of persons nated by either of the universities to a popish benefice with presented cure, shall be absent from the same above the space of sixty
versities to days in any one year ; in such case, the said benefice shall become popish live void. $ 6.
prefermens man volunt is, wher
persmay institute, resignation the power of ing
sation of deantyce to the king
FOR general bonds of resignation, see the title Simonp. Resigna 1. A resignation is, where a parson, vicar, or other benetion, what. ficed clergyman voluntarily gives up and surrenders his charge and
preferment to those from whom he received the same. Deg. p. l.
C. 14. (8) To whom 2. That ordinary who hath the power of institution, hath power to be made. also to accept of a resignation made of the same church to which
he may institute; and therefore the respective bishop, or other person who either by patent under him or by privilege or prescription hath the power of institution, are the proper persons to whom a resignation ought to be made. (u) And yet a resignation of a deanry in the king's gift, may be made to the king; as of the deanry of Wells. And some hold, that the resignation may well be made to the king, of a prebend that is no donative: But others on the contrary have held, that a resignation of a prebend ought to be made only to the ordinary of the diocese, and not to the king, as supreme ordinary; because the king is not bound to give notice to the patron (as the ordinary is) of the resignation; nor can the king make a collation by himself without presenting to the bishop, notwithstanding his supremacy. 2 Roll. Abr. 358. Wats. C. 4.
And resignation can only be made to a superior: This is a maxim in the temporal law, and is applied by lord Coke to the ecclesiastical law, when he says, that therefore a bishop cannot resign to the dean and chapter (w), but it must be to the metropolitan, from whom he received confirmation and consecration. Gibs. 822.
And it must be made to the next immediate superior, and not to the mediate; as of a church presentative to the bishop, and not to the metropolitan. 2 Roll's Abr. 358.
But donatives are not resignable to the ordinary; but to the patron, who hath power to admit. Gibs. 822.
And if there be two patrons of a donative, and the incumbent
resign to one of them, it is good for the whole. Deg. p. 1. C. 14. [ 320 ] 3. Regularly, resignation must be made in person, and not by Whether it proxy. There is indeed a writ in the register, intitled, litera must be
(t) The word Resignation is not good. Wats. c. 4. Dyer's Rep. 294, (a) n. 6. But there is a note there, that the judges held the contrary.
(8) This being his own act, he is not entitled to emblements. Bulwer v. Bulwer, 2 Bar. & Ald. Rep. 471.
(u) Ad eum fieri debet renunciatio ad quem spectat conformatio. Inst. J. C. 1.19.
(w) i Roll. Rep. 137.